One of the most important issues in the ecological evaluation of any site included those which are contaminated is addressing the wetlands , be they freshwater or tidal. The wetlands issue is always a tough thing to tackle since there is a special methodology required to identify what is or is not a wetlands and an elaborate set of NJDEP regulations restricting development or most activities in the wetlands AND the adjacent buffer.
The first question is how are wetlands regulated. In 1977, the wetlands first became regulated under theSection 404 of the U.S. Clean Water Act with authority being given toof the US Army Corp of Engineers U.S. ACOE) to regulate activities in the wetlands. At the Federal Level, the agencies principally responsible for identifying and delineating the wetlands are U.S. ACOE, U.S. Environmental Protection Agency (U.S. EPA) and U.S. Fish and Wildlife Service (U.S. FWS). This protection is afforded to these natural resources because wetlands have a variety of values including but not limited to wildlife and aquatic biota habitat, foodchain support to the freshwater aquatic and marine ecosystems, flood and wave/erosion protection, nutrient and contaminant sinks, groundwater recharge and discharge, water quality treatment, education and other societal values.
In 1988, the state of New Jersey assumed (took over) the Army Corp program for inland or freshwater wetlands under the fresh Freshwater wetlands Wetlands protection Protection actAct (N.J.A.C. 7:7A). However, for tidal wetlands NJDEP regulates under authority of the Wetlands Act of 1970 as well as the U.S. Army Corp of Engineers. This The Freshwater Wetlands Protection Act not only met Army Corp requirements under the clean water act, but also went beyond that by being more restrictive when dealing with work activities in wetlands. In addition and in many cases more importantly, it also developed a wetlands classification system, and not only increasing restrictions for the more valuable wetlands but requiring a buffer or transition area adjacent to freshwater fresh water wetlands. This “buffer” can be as much as one-hundred and fifty (150) feet wide, where activities are also restricted and permits and/or waivers are required. There are also “buffers for tidal wetlands. The “activities” regulated include almost any disturbance including vegetation removal and excavation, not just development, i.e. it also includes site investigations and remediation.
Before one even considers “activities” in the wetlands and/or Transition Area, the first issue is identifying and determining the boundaries of the wetlands. It is not acceptable to rely on NJDEP’s Interactive Mapping Program but only to be used as a rough guide. The National Wetlands Inventory Maps, we stopped using about twenty-five (25) years ago because of how inaccurate we found them to identify actual site conditions and the extent of wetlands, not to mention their problematic scale.
Identification and delineation are accomplished through utilizing the methodology detailed in the FEDERAL MANUAL FOR IDENTIFYING AND DELINEATING JURISDICTIONAL Wetlands (1989), about one hundred and fifty (150) pages in size. Under this methodology, an area is clearly a wetland when it meets all three of the criteria listed below, though in certain cases only one or two will suffice. The boundaries of the wetland were determined by defining the point where these criteria no longer existed, i.e., the furthest upland extent of these criteria. The criteria are as follows:
1. The Predominance of Hydrophytic Vegetation;
2. Hydric Soils;
3. Wetland Hydrology.
Vegetation is the most difficult criterion to address since in New Jersey there are about one-hundred and fifty (150) natural/indigenous species of trees and shrubs and over ten thousand (10,000) “weeds”, identification characteristics varying according to the time of the year. And then there are the non-indigenous species that have ”escaped” and that may be encountered.
Vegetation must be identified and the species classification determined as to whether or not they are:
* Obligate wetland (OBL) – essentially always found in wetlands (greater than 99% of the time);
* Facultative wetland (FacW) – usually found in wetlands (67 to 99% of the time);
* Facultative (Fac) – equally likely to be found in wetlands or nonwetlands (34 to 66% of the time);
* Facultative upland (FacU) – seldom found in the wetlands (1 to 33% of the time); and
* Obligate upland (UPL) – essentially never found in wetlands (less than 1% of the time).
Classification is according to the United States Fish and Wildlife Service’s (USFWS) NATIONAL LIST OF PLANT SPECIES THAT OCCUR IN WETLANDS; NATIONAL SUMMARY (1988). When 50% or more of the vegetative cover consists of Fac, FacW, and/or OBL species, hydrophytic vegetation is considered to be dominant. However, when OBL wetland species alone are dominant, then it is considered a wetland and Hydric soils and wetland hydrology are assumed to also be present.
Hydric soils determination is made in the field by utilizing a hand-held soil sampler and taking an appropriate number of samples to a depth of 10 to 14 inches from the top of the “A” horizon, along transects from the uplands into the wetlands. Wetland soils represent those whose Chroma (of the Matrix) is less than or equal to 1, or less than or equal to 2 when mottling is present. In reddish soils, the chroma may be extended to 3. However, sandy soils, if involved, are evaluated according to whether or not there is organic streaking of subsurface horizons, high organic matter in the surface horizon, and/or the presence of organic pans or spodic zones.
Wetland hydrology is noted by the presence or evidence of standing water, mucky soils, or saturation of soil samples. However, due to the variability of hydrology according to the time of year and precipitation, this criterion is not given as much weight as the other two criteria in some cases.
In the case of lawns, agricultural fields, or other man-manipulated lands, the regulatory agencies
usually give Hydric soils and/or hydrology more weight than vegetation in wetland determination because of the highly manipulated or unnatural character of the vegetation on these lands. The methodology also permits deviation for “problem sites” . However, each project is evaluated in detail on a case by case basis.
The wetlands needed to be flagged in the field, surveyed, plotted on a drawing with topography and submitted to the NJDEP for a “Letter of Interpretation” (LOI), i.e. a verification of the boundaries and determination of “Resource Value Classification” or size of the Transition Area. The application is extensive including an array of items/documentation supporting the delineation. And supposedly, ALL sites are field checked, at least under the NJDEP Land Use Program.
Any activity within wetlands or State open waters, requires appropriate permits. NJDEP can issue permits for filling or altering wetlands/State open waters, though the impact allowed is usually very limited and wetland replacement (construction or enhancement), is often required. The NJDEP has what is called Statewide General Permits which allow minimal impact such as constructing a roadway, installing utility lines, piping ditches and streams, filling isolated wetlands and some remediation. The NJDEP can also issue an Individual Freshwater Wetlands Permit (IP). However, the application process for this permit is extremely costly and time consuming. In addition, it is very difficult if not impossible to obtain an IP in most cases and mitigation is always required.
Besides needing to obtain permits to impact wetlands and State Open Waters, the New Jersey Freshwater Wetlands Protection Act Rules requires that Transition Areas from wetlands be provided, even from off-site wetlands. The size of the Standard Transition Area is dependent on the Resource Value Classification of the wetlands. Drainage ways, swales, ditches and detention basins are normally classified by NJDEP as Ordinary Resource Value Wetlands and/or State open waters and no associated Transition Areas are normally required. Streams, rivers, ponds and lakes with steep banks and no shoreline vegetation, are also classified as State Open waters. Isolated wetlands less than 5,000 square feet in size and surrounded mostly by development, are also classified as Ordinary. Wetlands are classified by NJDEP as Exceptional Resource Value Wetlands because they are associated with a stream which is Trout Production Waters or flows into such a stream or because they support Endangered or Threatened Species. With this classification, a 150-foot wide Standard Transition Area is required. Wetlands which do not meet any of these conditions are classified by NJDEP as Intermediate Resource Value Wetlands and require a 50-foot wide Standard Transition Area. An official determination of the classification of the wetlands/State open waters may be obtained from NJDEP through a Letter of Interpretation (LOI) application.
Professional Environmental Associates has over 30 years of experience dealing with the wetlands and Transition Area in New Jersey and other states. In addition, the experience of Mr. David L. Poling, President of PEA, with wetlands began in 1970. He was one of the first individuals to deal with Section 404 of the Clean Water Act, including the delineation of wetlands and obtains permits including Individual Permits.
We have conducted “thousands” of wetland delineations over the years and have been very successful in obtaining the necessary permits and approvals for activities in the wetlands and Transition Areas including a multitude of Individual Wetlands Permits on both the Federal and State Levels. This has included not only handling project according to Section 404 of the Clean Water Act, the Freshwater Wetlands Protection Act and Wetlands Act of 1970 but also with the N.J. Waterfront Development Act, N.J. Coastal Area Facilities Review Act (CAFRA), N.J. Flood Hazard Area Management Act and the U.S. River & Harbor Act of 1899. A multitude of these projects involved stream and wetlands reconstruction, enhancement and replacement as required to meet conditions of permits and/or waivers.